HomeMy WebLinkAboutORIENT CORPORATION OF AMERICA, INC. (2)A-?3-01i�
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, Ca.
ATTN: Clerk of the Council
DOC # 93-070606
09—JUN-1993 Pam
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DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
ORIENT CORPORATION OF AMERICA, INC.
r
DATED: May 3, 1993
REU 4�2DJ93
CONTENTS
1.
Binding Effect of Development Agreement. . . . . . . . .
3
2.
Relationship of the Parties . . . . . . . . . . . . . .
4
3.
Term . . . . . . . . . . . . . . . . . . . . . . .
4
4.
Development Standards and Phasing . . . . . . . . . . .
5
5.
Processing of Applications and Permits . . . . . . . . .
6
6.
Development Review . . . . . . . . . . . . . . . . . . .
6
7.
Utility capacity . . . . . . . . . . . . . . . . . . . .
7
8.
Reservations and Dedications; Subdivision . . . . . . .
7
9.
Development of the Property; Vesting of Development
Rights . . . . . . . . . . . . . . . . . . . . .
8
(a) General Statement . . . . . . . . . . . . . . .
8
(b) Existing Development Regulations . . . . . . . . .
8
(c) Exclusion from Definition of Existing Development
Regulations . . . . . . . . . . . . . . . . . . . .
8
(d) Subsequent "Slow/No Growth" Measures . . . . . . .
9
(e) Rent Control and Condominium Conversion (Office)
9
10.
Contributions by Developer . . ... . . . . . . . . . . .
9
(a) Monorail or other Fixed -Guideway Rail Transit
Station . . . . . . . . . . . . . . . . . .
10
(b) Live Theater . . . . . . . . . . . . . . . . . .
10
(c) Santiago Park Improvements . . . . . . . . . . .
11
(d) Neighborhood Traffic Mitigation . . . . . . . . .
13
11.
EIR Mitigation Measures . . . . . . . . . . . . . .
15
(a) Developer's Obligations . . . . . . . . . . . . .
15
(1) Owens Drive Improvements and Sewer
Obligations . . . . . . . . . . . . . . . .
15
(2) Main street Improvements . . . . . . . . . .
16
(3) Lawson Way Improvements . . . . . . . . . .
17
(4) Signalization . . . . . . . . . . . . . . .
17
(5) Storm Drain Improvements . . . . . . . . . .
17
(6) Transportation Demand Management Program . .
18
(7) Other EIR Mitigation Measures . . . . . . .
18
(b) City's Obligations . . . . . . . . . . . . . . .
i8
(c) Cummulative Impacts . . . . . . . . . . . . . . .
18
(1) Payment of Transportation Impact Fees . . .
18
(2) Use of Transportation Impact Fees . . . . .
19
(d) Residential density limitation . . . . . . . . .
19
12. Municipal Financing . . . . . . . . . . . . . . . . . 19
i
Y
13.
Subsequent Environmental Review . . . . . . . . . . .
20
14.
Assignment . . . . . . . . . . . . . . . . . . . . . .
21
15.
Periodic Review of Compliance . . . . . . . . . . . .
22
16.
Amendment or Cancellation . . . . . . . . . . . . . .
23
17.
Supersession of Development Agreement by changes in State
or Federal Law . . . . . . . . . . . . . . . . . . . .
23
18.
Enforced Delay and Extension of Times of Performance .
23
19.
Notices . . . . . . . . . . . . . . . . . . . . . . .
24
20.
Default and Remedies . . . . . . . . . . . . . . . . .
24
21.
Estoppel Certificate . . . . . . . . . . . . . . . . .
25
22.
Recordation of Agreement . . . . . . . . . . . . . . .
26
23.
Severability . . . . . . . . . . . . . . . . . . . . .
26
24.
Notice of Default to Mortgage, Deed of Trust or Other
Security Interest Holders Right to Cure . . . . . . .
26
25.
Cooperation in the Event of Legal Challenge . . . . .
27
26.
Enforceability of Agreement . . . . . . . . . . . . .
28
27.
Cooperation; Execution of Documents . . . . . . . . .
28
28.
Justifiable Reliance . . . . . . . . . . . . . . . . .
28
29.
Entire Agreement; Waivers . . . . . . . . . . . . . .
29
30.
Effective Date . . . . . . . . . . . . . . . . . . . .
29
31.
Rules of Construction; Section Headings . . . . . . .
29
32.
Time of the Essence . . . . . . . . . . . . . . . . .
29
33.
Counterparts . . . . . . . . . . . . . . . . . . . . .
30
EXHIBITS:
No. 1 Legal Description of the Property
No. 2 Map of the Property
No. 3 Phases of Development
ii
DEVELOPMENT AGREEMENT,'
BY AND BETWEEN
THE CITY OF SANTA ANA AND
ORIENT CORPORATION OF AMERiCA, INC.
THIS DEVELOPMENT AGREEMENT ("Development Agreement") is
made and entered into this 3rd day of _ May , 1993, by
and between the CITY OF SANTA ANA, a municipal corporation
organized and existing under the laws of the State of California
("City"), and ORIENT CORPORATION OF AMERICA, INCA a California
corporation ("Developer"). 4 0kwela,
R E C 1 T A L S
A. California Government Code Sections 65864 et seq.
provide that the legislative body of a city may enter into a
development agreement for the development of real property in order
to, among other things: (i) vest certain rights in the developer;
(ii) provide certainty in the approval of development projects in
order to avoid the waste of resources; (iii) encourage investment
in and commitment to comprehensive planning which will make maximum
efficient utilization of resources at the least economic cost to
the public; (iv) strengthen the public planning process and
encourage private participation in comprehensive planning; and (v)
reduce the economic costs of development by providing assurances to
the developer that the developer may proceed with its projects in
accordance with existing policies, rules, and regulations.
B. Pursuant to California Government Code Section
65865, the City has adopted its Resolution No. 82-92, establishing
procedures and requirements for the approval of development
agreements. Developer has applied to City pursuant to California
Government Code Sections 65864-65869.5, and pursuant to said
Resolution for approval of the Development Agreement set forth
herein.
C. The City desires to enter into this Development
Agreement with the Developer in order to facilitate the development
of certain property (the "Property") known as "Main Street
Concourse" (the "Development"), more fully described in Exhibit "A"
and shown on the map set forth on Exhibit "B", both attached
hereto. Such development shall be in accordance with (i) the
Specific Development Plan No. 59 , adopted by the same
ordinance by which this Development Agreement was approved by the
City and on file with the City Clerk and incorporated herein by
reference (the "Plan"), and (ii) Existing Development Regulations
(as defined below). The City has given notice of its intention to
adopt this proposed Development Agreement, has conducted public
hearings thereon pursuant to Government Code Section 65867 and
City's Resolution No. 82-98 and has found that the provisions of
1
this Development Agreement and its purposes are consistent with the
objectives, policies, general land uses and programs specified in
the city's General Plan, the Plan, and Existing Development
Regulations. In connection with its approval of the Development,
a Final Environmental Impact Report (11EIR11) was prepared and
certified by the City Council on April 19 ,
1993. Vesting Tentative Map No. 14408 (authorized pursuant to
Government Code Section 66498.1.et seq.), designed for multiple
phased final maps (authorized pursuant to Government Code Section
66456.1) was approved by the City on April 19
1993 (the "Map"). The Plan, the Map, and all other discretionary
land use approvals granted by the City prior to the Effective Date
(as hereinafter defined) of this Development Agreement are
collectively referred to herein as the "Approvals."
D. Development of the Property, which is a largely
vacant area almost totally lacking in required infrastructure
improvements, requires the construction of substantial public
improvements in various phases, many of which improvements will
benefit both the Development and surrounding areas. Certain
development risks and uncertainties associated with the long term
nature of the Development, including the cost of the portion of
these public improvements, could discourage and deter Developer
from making the long term commitments necessary to fully develop
the Property; therefore, the parties desire to enter .into this
Development Agreement in order to reduce or eliminate uncertainties
to such development over which the City has control.
E. This Development Agreement will assist in achieving
the City's goal of ensuring development of a vital and visually
exciting project of the highest quality architecture. As permitted
by law, the City and the Developer desire to use this Development
Agreement to establish high quality design and development
standards for the entire build -out period of the Development,
including all phases thereof, the permitted uses for the Develop-
ment, and to identify the scope of public infrastructure improve-
ments to be required for and as a result of, the Development.
F. The City recognizes that Developer may sustain
substantial losses if the City were to default in its obligations
herein undertaken, including the substantial investment made by
Developer to plan the Development.
G. The City, by electing to enter into contractual
agreements such as this one, acknowledges that the obligations of
City shall survive beyond the term or terms of the present City
Council members, that such action will serve to bind the City and
future City Councils to the obligations thereby undertaken, and
this Development Agreement might limit the future exercise of
certain governmental and proprietary powers of the City. By
approving this Development Agreement, the City Council has elected
2
to exercise certain governmental powers at the time of entering
into this Development Agreement rather than deferring its actions
to some undetermined future date. The terms and conditions of this
Development Agreement have undergone extensive review by the
neighboring community, the City Planning staff, the Planning
Commission and the City Council and have been found to be fair,
just and reasonable, and the City has Concluded that the pursuit of
the Development will serve the best interests of its citizens and
the public health, safety and welfare will be best served by
entering into this obligation. City acknowledges that Developer
would not consider or engage in the Development without the
assurances of development entitlement which this Development
Agreement is designed to provide.
H. The mutual undertakings, assurances, and covenants
provided for in this Development Agreement provide public benefits
to the City and its residents, including the promotion of compre-
hensive planning, private and public cooperation and participation
in the provision of public benefits, the increase in the City tax
revenues from the Development, and the effective and efficient
development of public facilities and infrastructure supporting the
Development which was contemplated and promoted by Government Code
Sections 65864 et seq.
1. This Development Agreement will promote and
encourage the development of the Property by providing the
Developer and its creditors with a greater degree of certainty of
the Developer's ability to expeditiously and economically complete
the development effort, and the parties agree that the consider-
ation to be received by the City pursuant to this Development
Agreement and the rights secured to the Developer hereunder
constitute sufficient consideration to support the covenants and
agreements of the City and the Developer. By entering into this
Development Agreement, City desires to vest in Developer, to the
fullest extent possible under the law, the development entitlements
specified herein in order to promote the completion of the
Development.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Binding Effect of Development Agreement.
This Development Agreement pertains to the Property as
described in Exhibit "A", provided, however, that with regard to
any portion of the Property as to which the Developer does not have
a legal or equitable interest on the date of this Development
Agreement, this Development Agreement shall apply to such portion
only if and when the Developer acquires such an interest in such
3
portion. The burdens of the Development
upon, and the benefits of the Development
successors in interest of the parties to the
and constitute covenants which run with the
to provide continued notice thereof, this
will be recorded by the parties.
Agreement are binding
Agreement inure to all
Development Agreement,
Property, and in order
Development Agreement
The assurances provided to Developer in this Development
Agreement are provided pursuant to and as contemplated by Govern-
ment Code Sections 65864 et seq., and in consideration for the
undertakings of Developer as set forth in this Development
Agreement, and are intended by the City to be and have been relied
upon by Developer to its detriment in undertaking the obligations
and covenants provided in this Development Agreement and in
expending monies and making improvements pursuant to this Develop-
ment Agreement. The parties agree that the consideration to be
received by the City pursuant to this Development Agreement and the
rights secured to Developer hereunder constitute sufficient
consideration to support the covenants and agreements of the City
and Developer.
2. Relationship of the Parties.
It is hereby specifically understood and acknowledged
that the Development is a private project and that neither the City
nor Developer will be deemed to be the agent of the other for any
purpose whatsoever. City and Developer and its successors and
assigns mutually deny any intention to form a joint venture or
partnership between city and Developer, and agree that nothing
contained herein or in any document executed in connection herewith
shall be construed as making the City and Developer, or its
successors and assigns, joint venturers or partners.
3. Term.
(a) Unless the term is otherwise modified or extended by
the parties as set forth in this Development Agreement, the term
("Term") of this Development Agreement is twenty (20) years from
the Effective Date (defined below), subject to earlier termination
as hereinafter provided.
(b) Pursuant to Section: 66452.6(a) of the California
Subdivision Map Act, the Map, including any lot line adjustment or
merger of lots (or any other tentative map filed subsequent to the
Effective Date of this Agreement) , shall also be extended for a
period equal to the period this Development Agreement remains in
effect.
(c) Notwithstanding subsections (a) or (b) hereof, if,
at the end of the original or modified term, the Property is in the
process of being developed, the term of this Development Agreement
H
shall be further extended until such construction in process is
completed, not to exceed an additional three years after expiration
of the original or modified term.
(d) The termination of this Development Agreement shall
not affect any right or duty arising independently from entitle-
ments to use issued by City or other land use approvals approved
concurrently with or subsequent to the approval of this Development
Agreement.
(e) Upon the expiration or termination of this Develop-
ment Agreement for any reason, the City and Developer and its
successors and assigns agree to cooperate and execute any document
reasonably requested by the other party to remove this Development
Agreement from the public records as to the property or any
applicable portion thereof.
4. Development Standards and Phasing.
In connection with the development of the Property by the
Developer, the City hereby agrees that the permitted uses of the
Property, density of use, intensity of use, maximum height and size
of proposed buildings shall be those set forth in the Plan. The
type, level and phasing of proposed development for the Property is
set forth in Exhibit C, attached hereto and incorporated herein.
Prior to the issuance of a certificate of occupancy for any
residential building on the Property, the Developer shall have:
(i) secured building permits for all buildings stated in
Exhibit C to comprise the nonresidential portion of Phase
I of the development of the Property (the "Phase I
Nonresidential portion"), to not less than the minimum
square footage for such buildings nor more than the
maximum square footage for such buildings, as set forth
in said Exhibit C;
(ii) provided the City with a certificate from the Developer
that financing (including but not limited to owner
financing) is available with respect to the Phase I
Nonresidential portion, such certificate to be accompa-
nied by customary documentation of the availability of
funds, including letters from any lenders and investors
in the customary form used by lenders and investors in
similar projects in southern California to express their
willingness to finance the Phase I Nonresidential
portion; and
(iii) commenced construction of the Phase I Nonresidential
Portion at least to the extent that the poured foundation
of all buildings shall have been completed.
The City's Executive Director of Planning and Building shall, upon
5
request of Developer, issue whatever documentation may be required
to evidence Developer's satisfaction of the aforesaid condition.
Except as provided hereinabove, the Developer may draw building
permits for any part of Phase I of the Development of the Property
at Developer's discretion. The ultimate order and timing of Phase
II of the development of the Property shall be left to the
discretion of the Developer. Subject only to the aforesaid
condition on Phase I of the Development and to the requirements for
a live performance theater in Section 10 of this Agreement, the
Developer may determine to build all or none or only a portion of
the Development, and at density less than the maximum density
allowed in the Plan. In the event that the total square footage of
nonresidential buildings in Phase I, as finally constructed, is
less than the maximum square footage allowed for nonresidential
buildings in Phase I by Exhibit C, the maximum square footage
allowed in Exhibit C for nonresidential buildings in Phase II shall
be increased by the amount of the difference.
5. Processing of Applications and Permits.
The City will accept and process, review and grant,
without undue delay, all applications for grading permits, building
permits, land use approvals, final site plans, tentative maps,
parcel maps, final maps, resubdivisions, map amendments, lot line
adjustments, encroachment permits, sewer and water connection
permits, business licenses, temporary and permanent certificates of
occupancy, or other entitlements or permits with respect to the
development and the use of the Property which are in conformity
with this Development Agreement, the Approvals, the Existing
Development Regulations, and other applicable regulations.
Throughout the term of this Development Agreement, Developer shall
have the right, at its election and without risk to the entitle-
ments vested by the Development Agreement, to apply for revisions
to any approved site plan for the Development, and such applica-
tions shall be reviewed as set forth in this Section 5 and in
Section 6 of this Agreement. It is understood by the parties to
this Development Agreement that pursuant to existing law, develop-
ment review approvals shall not remain valid for the term of this
Development Agreement, but only for the term of such development
review approvals. Accordingly, throughout the term of this
Development Agreement, the Developer shall have the right, at its
election, to file new development review applications on portions
of the Development where any previously approved development review
approvals have expired. Any new development review applications
filed for the Development shall be reviewed in accordance with this
Section 5 and in Section 6 of this Agreement.
6. Development Review.
Nothing set forth herein shall impair or interfere with
the right of the City to require the processing of building permits
as required by law and to conduct its development review of any
2
specific improvements proposed for the Development pursuant to the
applicable provisions of Chapter 41 of the City's Municipal Code;
provided, however, no such review shall authorize or permit the
City to impose any condition and/or withhold approval to any
proposed building the result of which would be inconsistent with
any term or provision of this Development Agreement or the
Approvals. In the event the Developer requests any density
conversion or changes to the conceptual site plan approved for the
Development as part of the Plan, the City may impose conditions on
its approval of such request which, in the reasonable and good
faith judgment of the City, are designed to mitigate or avoid new
or increased adverse effects which might otherwise occur because of
the conversion or change. It is further agreed that City in all
events shall promptly provide in writing clear reasons for any
disapproval in the event that the City disapproves any building as
proposed.
7. Utility capacity.
It is hereby agreed that City will not undertake any act
or neglect to perform any act or duty which would impair or inhibit
Developer's receipt of water, sewer service or storm drain, the
fees for which Developer has paid or is willing to pay to City for
such service. The City hereby represents that it currently has, or
will have, sufficient sewer, water and storm drain capacity for the
entire development of the Property.
a. Reservations and Dedications; subdivision.
It is hereby further understood and agreed that no reserva-
tions or dedications of land will be required by the City during
the Term (as herein defined) except as part of the conditions
imposed in connection with the approval of the Map, or as otherwise
agreed to in writing by the City and Developer, except that, (a) in
the event the City installs traffic signals at an intersection
adjacent to the Property, Developer agrees to provide the City with
an easement for the installation of underground traffic signal
appurtenances, if it is necessary for such appurtenances to
encroach into the Property, or (b) in the event that Developer
applies for a revised site plan for the Development which
reasonably requires the relocation of turn -lane right-of-way
indentations into the Property, the City may condition its approval
of such revised site plan on the dedication of such new right-of-
way indentations. Nothing herein shall be construed to limit the
City's power of eminent domain. The City agrees, upon application
by the Developer, to allow for a resubdivision of the Property or
the modification of the boundary lines between proposed phases or
parcels of development.pursuant to a lot line adjustment, provided
Developer complies with the Subdivision Map Act and City procedures
adopted pursuant to that Act. The City agrees not to impose any new
or additional requirements or conditions upon any such
resubdivision or lot line adjustment, other than those imposed upon
7
the Map, except to the extent that such new requirements or
conditions are necessitated by the new location of the lot lines
because of Building Code requirements or other requirements of law.
9. Development of the.Property; Vesting of Development Rights.
(a) General Statement.
Notwithstanding any' subsequent changes to the General
Plan, the Plan, the Redevelopment Plan, the Zoning of the Property,
or any other change affecting the development or use of the
Property, including without limitation any changes imposed by any
initiative approved by the voters, and except as specifically set
forth herein, Developer shall have the vested right to proceed with
the development -of the Property in accordance with the Approvals
and all Existing Development Regulations, as defined below.' As a
material inducement to the Developer and its lenders to continue
its diligence to promote the development of the Property, the City
desires to cause all development rights which may be required to
develop the Property to completion with buildings and related
improvements consistent with the Approvals, to be deemed vested as
of the date of this Development Agreement and to be free of all
discretionary rights of the City, except as herein provided.
Notwithstanding the foregoing, nothing set forth in this Develop-
ment Agreement shall be deemed to require Developer to complete the
Development.
(b) Existing Development Regulations.
In accordance with the terms of Government Code Section
658661 the City and the Developer agree that the ordinances, rules,
regulations and official policies of the City, including the Plan
(collectively, the "Existing Development Regulations") in effect as
of the date of this Development Agreement governing the design,
density, height, permitted land uses, timing and phasing, and other
improvement and construction standards applicable to the Develop-
ment shall govern during the Term of this Development Agreement.
Except as otherwise provided in this Development Agreement, without
Developer's written approval, no amendment to or revision of, or
addition to any of the Existing Development Regulations or the
Plan, whether adopted or approved by the City Council or any
office, board, commission or other Agency of the Cxty, or by the
people of the City through charter amendment or initiative measure,
shall be effective or enforceable by the City with respect to the
Development, its design, grading, construction, remodeling, use or
occupancy, or schedule of development.
(c) Exclusion from Definition of Existing Development
egulations.
As used herein, Existing Development Regulations shall not
EE'
include municipal laws and regulations which do not interfere with
Developer's vested rights to develop and use the Property in
accordance with the Approvals. Developer and its successors and
assigns and all persons and entities in occupation of any portion
of the Property shall comply with such non -conflicting laws and
regulations as may from time to time be enacted or amended
hereafter. Specifically, but without limitation on the foregoing,
such non -conflicting laws and regulations include the following:
(1) Taxes, assessments, fees and charges, except as
otherwise specifically provided in this Development Agreement;
(2) Building, electrical, mechanical, fire and similar
codes based upon uniform codes incorporated by reference into
the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, 'which
regulate the manner in which business activities may be
conducted or which prohibit any particular type of business
activity on a city-wide basis; and
(4) Procedural rules of general City-wide application.
(d) Subsequent "Slow/No Growth" Measures.
In furtherance of clauses (a) and (b), above, the City
and -Developer specifically agree that any subsequently enacted
initiatives, referendums, or amendments to the City's General Plan
and/or Zoning Code which contain "slow/no growth" measures or which
by their terms are intended to, or by operation have such effect,
including but not limited to measures governing the timing or
sequence of growth, shall have no application to the Development.
Notwithstanding any such measures, the mitigation measures required
for the Development are limited to those established by this
Development Agreement.
(e) Rent Control and Condominium Conversion (Office).
During the Term of this Development Agreement, any ordinance,
regulation, or condition which would (i) directly or indirectly
artificially control or otherwise restrict commercial or office
rents charged within the Development or (ii) apply directly or
indirectly to the conversion of office rental units to office
condominiums within the Development, shall not be applicable to the
Development.
10. Contributions by Developer.
In consideration of the City entering into this Develop-
ment Agreement, Developer has agreed to provide certain contribu-
tions with respect to improving the Property and the general area
0
surrounding the Property which contributions will have an overall
benefit to the entire City of Santa Ana. These contributions exceed
the level of mitigation otherwise required by the EIR and are being
provided in exchange for the benefits provided by the City to
Developer under this Development Agreement. These contributions are
as follows:
(a) Monorail, or other Fixed -Guideway Rail Transit Station.
Developer agrees to grant an easement for the purpose of
locating a future monorail or other fixed -guideway rail transit
station on the Property, such grant to be'to either the City or .to
such entity as may have jurisdiction over the passenger stations
serving such a future fixed -guideway transit system and to be
without cost to the grantee, provided the following conditions are
satisfied:
(1) The development of the fixed -guideway transit system has
progressed to the stage where the construction of
stations servicing the system is appropriate.
(2) The fixed -guideway transit system is so designed as to be
serviceable by a transit station on the Property.
(3) A suitable site for the construction of a transit station
in a timely manner and without excessive cost (in
comparison with possible alternative locations) exists on
the Property.
(4) Mutually acceptable easement and construction agreements
pertaining to a transit station on the Property are
entered into between the Developer and the City or other
entity having jurisdiction over transit stations servic-
ing the fixed -guideway system.
(b) Live Theater.
The Developer will construct a theater designed for live
theatrical perfomances. The live performance theater may be
provided as a component of the 1,500-seat cinema complex (in which
case the theater may be (i) dual use, allowing for both cinema use
and live theatrical performances, or (ii) dedicated solely to live
theatrical performances) or, in the alternative, the live perfor-
mance theater may be provided in a stand-alone structure utilized
solely for live theatrical performances. In any case, the cinema
complex and the live performance theater shall contain no more than
11500 seats in the aggregate. The minimum contribution required by
Developer with respect to the live performance theater, including
physical improvements necessary to accommodate live performance
such as the installation of special lighting, stage facilities,
seating, showers, dressing rooms, offices, storage, and elevators
001
for the transportation of stage equipment, shall be $1,000,000.
Any expenditure of funds beyond $1,000,000 shall be at the
discretion of the Developer. The live performance theater shall
satisfy the following standards:
(1) It shall have its own main entrance doors with a foyer
inside the main entrance.
(2) It shall have not less than 150 nor more than 300 seats.
( 3 ) The seats shall be oriented across the length rather than
the narrower width of the theater space.
(4) If a dual -use theater is constructed, it shall have a
retractable cinema screen at the rear of a partial thrust
stage.
(5) It shall have side stage access from small holding areas.
(6) It shall have dressing rooms which include restrooms.
(7) It shall have a prop storage room.
(8) It shall have a basic sound, and lighting system with
expansion capabilities.
No certificate of occupancy shall be issued for any nonresidential
building on the Property until construction of the live performance
theater has been completed.
The Developer shall make a good faith effort to assure that
the live performance theater shall be used for live theatrical
performances by groups affiliated with the Santa Ana Council of
Arts and Culture or such other organization of Santa Ana --based
theatrical groups as -may be approved by resolution of the City
Council of the City for purposes of this Agreement, to the extent
this can be done without the payment by Developer of any rental or
operating subsidies. In this regard, it is understood that all
tenants of the live performance theater will be expected to pay
fair market rent on a net lease basis plus all taxes and operating
costs. As used herein, "theatrical" is not limited to plays, but
also includes other live, on-stage performances.
(c) Santiago Park Improvements.
The Developer shall contribute a maximum of Three Million
Two Hundred Thirty Thousand Dollars ($3,230,000) to the City for
the improvement of Santiago Park. The City shall work with the
community residents in determining the appropriate allocation of
these funds for necessary or desirable park improvements, provided
that all funds must be expended on park improvements (but not
operation and maintenance). Subject to approval by the City after
11
consultation with community residents, the anticipated park
improvements may include, but are -not limited to: installation of
an automatic irrigation system; renovation of the existing
landscaping; renovation of walkways, picnic facilities and
shelters; renovation of jogging course, exercise station and
signage; renovation of sand lot and play equipment; renovation of
the ball field area and backstop; provision of new and improved
park signage; improvements to the security lighting at the key
locations; installation of pedestrian improvements; facilitation of
access to the Property from Santiago Park; and installation and
restoration of a creek recirculation system.
The contribution towards Santiago Park shall be paid at the
rate of one dollar sixty-four cents ($1.64) per square foot for
each square foot of development. This corresponds to One Million
Four Hundred Seventy Two Thousand Eight Hundred Eighty Dollars
($1,472,880) for Phase I, and an additional one Million Seven Hun-
dred Fifty Seven Thousand one Hundred Twenty Dollars ($1,757,120)
for Phase II, assuming Phase 11 is built to its maximum allowable
development. As used herein, "Phase I" and "Phase II" refer to the
phases set forth in Exhibit C of this Agreement. Payments shall be
made as follows:
(a) For Phase I: Payments shall be made as a condition to
the issuance of each building permit and shall be based
on the square footage of the development for which the
permit is issued.
(b) For Phase II: Payments shall be due in the same manner
as for Phase I, except that a payment or payments in the
total amount of $1, 250, 000 must be made as a condition to
the issuance of -the first certificate of occupancy. To
the extent such payment exceeds the amount due based on
the square footage of the development for which building
permits have been issued, it shall be a nonrefundable
credit on the payments that would otherwise be due for
the issuance of future building permits.
The City agrees that, as to each payment made by Developer
pursuant to this Subsection (c), the City shall expend such money
for Santiago Park improvements within five (5) years of receipt,
or, if it fails to do so, refund the unexpended portion to
Developer upon demand. If the City has incurred an enforceable
obligation to pay funds to a contractor for such improvements, such
funds shall be deemed expended for purposes of this section.
It is understood and agreed by
contribution made by Developer under
addition to any tax or fee imposed
development for the acquisition and
City.
12
the parties hereto that the
this subsection (c) is in
by the City on residential
development of parks in the
(d) Neighborhood Traffic Mitigation.
Although the EIR prepared for the Development concludes
that there will. be no adverse impact on the adjacent residential
neighborhoods commonly known as Parker Batavia, Northeast,
Northwest and Floral Park (the "Neighborhoods"), the Developer and
the City acknowledge that existing traffic modeling methodology
cannot predict with absolute certainty that there will be no
impacts on the Neighborhoods. Accordingly, the Developer agrees as
follows:
(1) Prior to the issuance of any building permit for the
first phase of the Development, the Developer will
deposit with the City $20, 000, to be used by the City for
a traffic study or studies by city staff or by'a traffic
consultant or consultants selected by the City, which
study or studies will:
(i) create an "existing conditions database" describing
traffic conditions existing in the Neighborhoods
after completion of the I-5 Improvements but before
initial occupancy of the first phase;
(ii) entail average daily trip counts, turning movement
counts, speed surveys and license plate surveys, as
determined appropriate by the City; and
(iii) at the City's election, evaluate the effectiveness
and continued need for the traffic control measures
implemented as part of the I-5 Improvements.
Any portion of the amount of the said $20,000 deposit
which is not expended for the abovesaid study shall be
refunded to the Developer.
(2) Prior to the issuance of the first building permit for
any nonresidential building in Phase I of the
Development, the Developer agrees to deposit with the
City $50,000, to be used by the City for an additional
traffic study or studies by City staff or by a traffic
consultant or consultants selected by the City, which
study or studies will identify traffic impacts in the
Neighborhoods, if any, attributable to Phase I of the
Development. Any portion of the said $50,000 deposit
which is not expended for Phase I traffic studies will be
refunded to the Developer.
(3) Prior to the issuance of a building permit for any
building in Phase II of the Development, the Developer
agrees to deposit with the City an additional $50,000, to
be used by the City for an additional traffic study or
studies by City staff or by a traffic consultant or
13
consultants selected by the City, which study will
identify additional traffic impacts in the Neighborhoods,
if any, attributable to development occurring during
Phase II of the Development.
If any traffic study done pursuant to paragraphs (2) or (3)
identifies traffic intrusion into the Neighborhoods attributable to
the Development, the study shall also develop suitable mitigation
measures which could alleviate the identified adverse .traffic
impacts in the Neighborhoods. With regard to any such traffic
study, Developer shall be provided the opportunity to review and
comment on the findings and recommendations contained within it
prior to any determination by the City to implement those findings
and recommendations.
The Developer agrees to contribute a maximum total amount of
$750,000 for the implementation, construction and/or completion of
the mitigation measures identified in the abovesaid studies,
subject to the following terms and conditions:
(a) Any such mitigation measure to be funded by the Developer
must be approved by the City of Santa Ana, if located in
the City of Santa Ana, or by the City of Orange, if
located within the City of Orange. Each city shall have
complete discretion to determine whether a mitigation
measure within its jurisdiction has adequate resident
support and is otherwise warranted.
(b) Any such corrective measures must be selected and
approved in accordance with subsection (a) above, not
later than the date occurring ten (10) years following
(i) the completion of Phase II of the Development, or
(ii) the end of the Term specified in Section 3 of this
Development Agreement (without regard to any termination
of this Agreement earlier than the end of said Term),
whichever first occurs.
(c) The issuance of building permits, certificates of
occupancy and/or licenses and permits necessary to
initiate and complete the construction of the Development
in accordance with the Plan shall' not be in any manner
denied, delayed or conditioned due to any impact identi-
fied in the traffic studies and/or the failure of the
City or the City of Orange to agree to or implement any
corrective measures identified in the. 'studies, provided
Developer has deposited funds as required by this
subsection.
(d) To secure its obligations hereunder, prior to the
issuance of a certificate of occupancy for the first
office building in Phase I of the Development, the
Developer shall deposit $750,000 with the City, to be
14
used solely to fund mitigation measures which have been
identified in any traffic study pursuant to this
subsection and which have been approved and agreed to in
accordance with paragraph (a) hereof.
(e) To the extent the City of Santa Ana has not agreed on how
to allocate or implement the traffic mitigation measures
identified in any study done pursuant to this subsection
and approved such mitigation measures in accordance with
paragraph (a) hereinabove within the time period
specified in paragraph (b) hereinabove, the City shall
promptly refund any of the deposit made by developer
pursuant to paragraph (d) in excess of amounts which have
been allocated and.approved.
(f) The use of the Developer's deposit to fund mitigation
measures. in the City of Orange shall be by agreement
between the cities of -Santa Ana and Orange, using funds
deposited with the City of Santa Ana by the Developer
pursuant to this subsection. The City of Santa Ana shall
be responsible for assuring that, use of such funds in the
City of Orange is subject to paragraph (e) hereinabove
and shall be liable to Developer for the refund due
Developer under that paragraph regardless of any transfer
of any portion of such funds from the City of Santa Ana
to the City of Orange. It is understood and agreed that
$250,000 of the deposit made by Developer pursuant to
paragraph (d) may be used for traffic mitigation measures
located in either the City of Santa Ana or the City.of
Orange, and that the balance of the deposit made pursuant
to paragraph (d) shall be used solely for mitigation
measures located in,the City of Santa Ana.
The City shall immediately upon receipt of any payment from
Developer pursuant to this section, place the funds paid in a trust
fund account established for the purpose for which the payment was
made. The City shall invest such funds in such investments as it
shall, in its sole discretion, determine. All investment earnings
on funds in the trust fund account shall accrue to that account and
be subject to the same limitations as the principal amount of the
desposit. City agrees to maintain separate accounting records for
the use of the monies paid to it hereunder.
11. EIR Mitigation Measures.
(a) Developer's obligations.
(1). Owens Drive Improvements and Sewer Obligations.
The Developer's obligations with respect to the widening
of Owens Drive and with respect to the installation of new sewer
lines serving the Development shall be as set forth in that certain
15
Construction Funding Agreement, dated April 6, 1992, between the
City and the Developer; provided, however,'that:
(i) In the event funds deposited with the City for the
Developer's share of the cost of the Owens Drive widening are
refunded to the Developer pursuant to the said Construction Funding
Agreement, the Development shall- not proceed until alternative
provision for the Developer's participation in the costs of the
widening of Owens Drive is agreed upon in writing by the City and
the Developer.
(ii) In the'event funds deposited with the City for the
Developer's share of the cost of the "Memory Lane Interceptor Sewer
Project" are refunded to the Developer pursuant to the said
Construction Funding Agreement, the Development shall not proceed
until alternative provision for the Developer's participation in
the costs of the installation of new sewer improvements serving the
Development is agreed upon in writing by the City and the Develop-
er.
It is stipulated and agreed by the parties hereto that
the Developer's payment of the- Developer's share of the cost of the
"Memory Lane Interceptor Sewer Project" pursuant to the said
Construction Funding Agreement is the sole and complete charge to
be imposed on the Developer for sewer improvements as a condition
of construction of the Development. In particular, the Developer
shall not be required to pay the sewer connection fee established
by section 39-53 of the Santa Ana Municipal Code or the Memory Lane
Interceptor Sewer development fee established by section 39-82 of
the Santa Ana Municipal Code as a condition of construction of the
Development or any part thereof.
(2) Main street Improvements.
It shall be the obligation and responsibility of the
Developer to design, bid, construct certain improvements and
dedicate certain right of way easements along Main street as more
specifically described in the conditions of approval of the Map
("Main Street Improvements"). Developer agrees that all such
construction of the Main Street Improvements will be completed
prior to May, 1993 (except for such portion thereof as is not
located on land owned by either the Developer, the City, or the
Community Redevelopment Agency of the City of Santa Ana), or else
that the construction of the Main Street Improvements must be
delayed until following the reopening of the Main Street' bridge
over the I-5 (Santa Ana)' Freeway after the widening of that freeway
at that point by the State Department of Transportation. In this
regard, it is understood that the completion of the construction of
the Main Street improvements is a condition precedent to the
issuance of building permits for the Development or any portion
thereof.
16
The City agrees not to issue any permit to any person other
than Developer for a bus shelter in 'the Main Street sidewalk
adjacent to the Property, except in either of the following
circumstances:
(a) The Developer has not installed a bus shelter, either in
the Main Street sidewalk adjacent to the Property or on
the Property adjacent to such sidewalk, within one (1)
year after the date of this Agreement;
(b) The Developer has removed the previously constructed bus
shelter as part of the reconstruction of the Main Street
sidewalk at the time Developer proceeds with Phase II of
the Development and has failed to construct a new bus
shelter, either in the Main Street sidewalk adjacent to
the Property or on the Property adjacent to such
sidewalk, at the time Developer completes such sidewalk
reconstruction.
Any bus shelter constructed by Developer in the sidewalk.adjacent
to the Property shall comply with City standards for bus shelters
in the public right-of-way in effect at such time.
(3) Lawson Nay Improvements.
It shall be the obligation and responsibility of
Developer to design, bid and construct certain street improvements
to and along Lawson Way as more particularly specified in the
conditions of approval of the Map ("Lawson Way Improvements").
Developer's construction of the Lawson Way Improvements shall occur
concurrently with the construction of Phase I development.
(4) Signalization.
The Developer shall be responsible for the design, and/or
construction and/or reconstruction of traffic signals and bear the
cost with respect thereto, all in accordance with and as'more
specifically set forth in the conditions of approval of the Map.
(5) Storm Drain Improvements.
The Developer shall design, bid, construct (in coordina-
tion with the Owens Drive Improvements) and bear the expense of the
construction of storm drain improvements to handle drainage and
water runoff from the Property in accordance with and subject to
the terms of the conditions of approval of the Map. The Developer
shall receive full credit against any drainage assessment fee
imposed on the Development.
17
(6) Transportation Demand Management Program.,
The Developer agrees to comply with the Transportation
Management regulations set forth in Article XIII of chapter 36 of
the Santa Ana Municipal code, including, but not limited to, the
requirement to obtain City approval of a TDM strategy plan
concurrently with City approval of the Development and the
requirement to obtain City approval of a TDM program prior to
occupancy of the first nonresidential building in the Development.
(7) Other EIR Mitigation Measures.
Subject to the provisions of subsection (c) of this
section, the Developer agrees. to comply with the other mitigation
measures for the Development set forth -in the final EIR and
determined feasible to implement by the City in connection with
approval of the Development. To the extent that Developer develops
the Development, Developer hereby agrees to implement the various
mitigation measures, at such phase of development as required to be
implemented by Developer in the mitigation monitoring program of
the EIR. It is understood and agreed that the costs of implement-
ing the mitigation measures are to be borne by Developer unless
otherwise stated in this Development Agreement or in the mitigation
monitoring program of the EIR, subject to such reimbursements to
Developer,if any, as are provided for in this Development Agreement
or as may be otherwise agreed to by the city.
(b) City's obligations.
Subject to the provisions of paragraph (1) of subsection
(a) of this section, the City's obligations with respect to the
widening of Owens Drive and with respect to the installation of new
sewer lines serving the Development shall be as set forth in that
certain Construction Funding Agreement, dated April 6, 1992,
between the City and the Developer.
(c) Cummulative Impacts.
(1) Payment of Transportation Impact Fees.
In accordance with Santa Ana Municipal, Code Section 8-44,
which provides for the payment of transportation system improvement
development fees on an area -wide basis, the Developer agrees that
the Developer shall pay such "Transportation System Improvement
Fees." It is understood that the Transportation System Improvement
Fees which are paid in the area in which the Property is located
are administered by a joint powers agency between the cities of
Santa Ana and Orange, entitled the Transportation System Improve-
ment Authority, which was established to provide for transportation
system improvements located within, or' benefitting, an area
consisting partly of territory of the City of Santa Ana and partly
of territory of the City of Orange. To the extent that bond sale
18
revenues are allocated to the Transportation Improvement Authority
pursuant to that certain "Cooperation Agreement, City of Santa Ana
Community Facilities District No. 92-1 (Main Street Councourse
Public Improvements)," dated September 8, 1992, between the City
and the Transportation System Improvement Authority, such alloca-
tion shall constitute the advance payment of transportation system
improvement development fees by the Developer for purposes of this
Agreement in accordance with the said Cooperation Agreement.
(2) Use of Transportation Impact Fees.
It is understood that the costs of implementation of the
cumulative mitigation measures which have been identified in the
EIR for the Development are to be paid by Transportation System
Improvement fees which are paid by Developer and by developers of
other development projects which are within the area which is the
responsibility and jurisdiction of the Transportation System
Improvement Authority, a joint powers agency of the City of Santa
Ana and the City of Orange. In the event the regional public
improvements contemplated as cumulative mitigation measures in the
EIR are not completed, the City agrees that it will not withhold or
delay the processing or granting of any applications, permits or
approvals, including without limitation building permits or
certificates of occupancy, so long as the Developer has otherwise
satisfied its obligations under this Development Agreement as they
relate to the particular portion of the Development for which the
application, permits or approvals are being sought.
(d) Residential density limitation.
In order to assure that the residential units included in the
Development•do not become so densely populated as to impose an
unreasonable burden on the public infrastructure in the area of the
Development, Developer agrees to assure that the Covenants,
Conditions, and Restrictions pertaining to occupancy of such dwel-
ling units contain a standard limiting the number of persons who
are allowed to -occupy each such dwelling unit at any given time.
Such standard shall not be less restrictive than the following:
for the first two (2) occupants of any dwelling unit, there shall
be at least one hundred fifty (150 ) square feet of net floor space;
there shall be at least one hundred (100) square feet of net floor
space for every additional occupant thereafter; with fractional
quotients to be raised to the next highest integer. As used
herein, "net floor space" means the total number of square feet of
floor space in a dwelling unit based upon that dwelling unit's
interior dimensions, excluding stairwells, halls, closets,
bathrooms, kitchens and garages.
12. Municipal Financing.
It is anticipated that the cost -of some or all of the
public infrastructure improvements which are to be constructed in
W
connection with the Development will be financed through one or
more Municipal Financing(s). For purposes of this Development
Agreement, a "Municipal Financing" shall mean a sale of municipal
bonds secured by special taxes pursuant to the Mello -Roos Facili-
ties Act of 1982, being Chapter 2.5 of Division 2 of Title V of the
California Government Code, commencing at Section 53311 thereof.
If, as anticipated, the City does establish a Community Facilities
District consisting of the Property pursuant to said Act, City
hereby agrees to use its best efforts to sponsor the issuance of
one more Municipal Financing(s) to assist in the completion and
installation of such public infrastructure improvements unless the
Developer and the City mutually agree to not issue such Municipal
Financing(s). In the event the City shall be responsible for
completing one or more portions of such improvements, City agrees
to act promptly to so complete such improvements in order to avoid
delays to the Development. It is anticipated that notwithstanding
any Municipal Financing(s), the initial cost of the installation of
the required public improvements may be borne in part by Developer.
13. Subsequent Environmental Review.
In exercising its legislative discretion to enter into
this Development Agreement and to commit the City to the completion
of the Development, the City has reviewed and considered the
potential adverse environmental impacts related to all aspects of
the contemplated project, including, without limitation, the
potential demands the Development will make on local and regional
streets, highways, parks and recreation areas, water capacity and
water lines, sewer capacity and sewer lines, flood and storm drain
systems, and energy conservation, and the effect on school
capacity, traffic, pedestrian safety, noise and air quality
impacts. The City has further reviewed and considered from a
variety of perspectives, and has analyzed pursuant to a variety of
assumptions, the projected future regional and cumulative environ-
mental demands that will compete with the Development for available
capacities and cumulatively add to potential adverse impacts. In
so doing, the City has considered among other things, the possibil-
ities that:
(a) Federal, local, regional and state plans, if
any, for provision of new infrastructure systems o'r expansion
of existing infrastructure systems may be delayed, modified or
abandoned;
(b) The types, intensities, and amount of future
regional development may exceed or otherwise be different from
that currently being planned by the City and other local
agencies; and
(c) Demands generated by the Development and
otherwise generated in the region on infrastructure and
utility improvements to be constructed as a part of the
ac
Development may exceed in either the short run or the long run
the allocated capacities for such demands.
After assessing these and other potential adverse
environmental impacts associated with the development of the
Property, the City has imposed mitigation measures through the ETR,
the subdivision review process, and this Development Agreement to
the fullest extent the City considers feasible and necessary. The
City has determined that phased completion of the Development in
the manner contemplated will.itself provide the mitigation measures
needed to contribute to alleviate short run and long run potential
adverse environmental impacts, and that the public benefits of the
Development override any potential adverse environmental impacts
which may arise during the development period; therefore, the City
agrees that, except as otherwise 'required by California Public
Resources Code Section 211661 no subsequent or supplemental
environmental impact report shall be required by the City for the
subsequent discretionary approvals which are a part -of the entire
Project contemplated by this Development Agreement.
14. Assignment.
Developer (including the owner of any Transferred
Property (as defined below) ) shall have the right from time to time
and on such number of occasions as it.may.choose, to sell, assign,
or transfer ("Transfer") all of its interest in the Property, or
any portion thereof, along with all of its right, title and
interest in and to this Development Agreement as applicable to the
Property, or the portion thereof which is the subject of the
Transfer ("Transferred Property") to any person, firm or corpora-
tion ("Transferee") at any time during the term of this Development
Agreement without the consent of City. Nothing herein shall be
construed to allow the Developer to -transfer a portion of the
Property is such a manner as to deprive any building or building
site of its necessary parking or access rights. Developer's rights
and obligations hereunder shall run with the land, and shall be
binding upon and inure to the benefit of the Property and each
portion thereof, provided that upon a Transfer, Developer and the
Transferee shall enter into and record an.Assignment and Assumption
Agreement, setting forth the executory mitigation measures,
exactions and conditions, if any, associated with the Transferred
Property ("Transferred Property Exactions and Conditions") and
pursuant to which the Developer shall assign. and the Transferee
shall assume the Transferred Property Exactions and Conditions.
The City shall be furnished with a recorded copy of such Assignment
and Assumption Agreement and from and after the effective date of
such Assignment and Assumption Agreement, the Developer shall cease
to have any liability or responsibility with respect to the
Transferred Property Exactions and Conditions. All executory
exactions or conditions which are not part of the Transferred
Property *Exactions and Conditions shall remain with the balance of
the Property.
21
Subsequent to a Transfer of any separate legal parcel
within the Property to a Transferee, no default by Developer
hereunder with respect to the balance of the Property shall
constitute a default by such Transferee with respect to the
Transferred Property, and no default by such Transferee (or any
successor or assigns of such Transferee), with respect to the
Transferred Property .shall constitute a default 'hereunder by
Developer with respect to the balance of the Property. After the
effective date of an Assignment and Assumption Agreement, the party
then owning the Transferred Property shall have full authority
hereunder to deal directly with the City with regard to all matters
relating to the Transferred Property with respect to the Develop-
ment Agreement or otherwise, including but not limited to, entering
into any agreement or modification of this Development Agreement as
may be mutually approved by the City without the necessity to
obtain any Consent or authorization from the owner of any other
parcel(s) within the Property, provided, however, that no such
amendment shall apply to any other parcel(s) within the Property
without the approval or consent of'the owner(s) thereof. Wherever
the term "Developer" is used herein., such term shall also include
any assignee of, or successor to; the -interest of Orient Corpora-
tion of America, Inc., a California corporation, in the Property or
the owner of any Transferred Property which has executed an
Assignment and Assumption Agreement with respect to the Transferred
Property.
Notwithstanding the foregoing, whenever this Development
Agreement or the Approvals impose conditions precedent to the
development of the Property beyond a specified limit, development
of the Property beyond those limits shall not proceed until such
conditions have been satisfied, regardless of any complete or
partial transfer of responsibilities for the performance of such
conditions pursuant to this Section.
Also, in the event funds are deposited with the City pursuant
to this Development Agreement and the City thereafter becomes
obligated to make a whole or partial refund of such funds, such
refund shall be due to the person or entity that made the deposit
unless a written assignment of such right to another person or
entity, signed by the person or entity making such deposit and
making specific reference to such deposit, is delivered to the
City, regardless of any change in ownership of the Property or any
part thereof.
15. Periodic Review of Compliance.
In accordance with Government Code Section 65865.1, the
City shall review this Development Agreement at least once each
calendar year hereafter. At such periodic reviews, Developer must
demonstrate its good faith compliance with the terms of this
Development Agreement. Developer agrees to furnish such evidence
of good faith compliance as the City, in the reasonable exercise of
22
its discretion and after reasonable notice to Developer, may
require. Developer shall be deemed to be in good faith compliance
with this Development Agreement if the City is not entitled by the
terms and provisions of this Development Agreement to terminate
this Development Agreement. 'A failure of the City to timely
conduct a periodic review pursuant to this Section 15 shall not in
any manner constitute -a default by the City or the Developer
hereunder or invalidate this Development Agreement or diminish,
impede, or abrogate the rights and privileges of either party or
its successors and assigns hereunder.
16. Amendment or Cancellation.
This Development Agreement may be amended or canceled in
whole or in part only by mutual consent of the parties and in the
manner provided in Government Code Sections .65866, 65867 and
65867.5.
17. Supersession of Development Agreement by changes in State or
Federal Law.
. In the event that State or Federal laws or regulations
enacted after this Development Agreement have been entered into or
the action or inaction of any other affected governmental jurisdic-
tion prevents or precludes compliance with one or more provisions
of this Development Agreement so that required changes in plans,
maps or permits need to be approved by the City, the parties shall:
(a) Provide the other party with written notice of
such State or Federal restriction, provide a copy of such
regulation or policy as a statement of conflict for the
provisions of this Development Agreement; and..
(b) Promptly meet and confer with the other party
in a good faith and make .a reasonable attempt to modify or
suspend this Development Agreement to comply with such federal
or State law or regulation. Thereafter, regardless of whether
the parties reach agreement on the effect of such Federal or
State law regulation upon this Development Agreement, the
matter shall be scheduled, for a hearing before the City
Council, upon thirty (30) days notice, for the purposes of
determining the exact modification or suspension which is
required by such Federal or State law or regulation.
IS.. Enforced Delay and Extension of Times of Performance.
In addition to specific provisions of this Development
Agreement, performance by either party hereunder shall not be
deemed to be in default where delays or defaults are demonstrated
to be due to acts of God, war, acts or omissions of third parties
which are not a party to this Development Agreement, including but
not limited to, other governmental agencies, or other causes beyond
23
the reasonable control.of Developer. Furthermore, performance by
either party will be excused if the failure to perform results from
an act or omission of the other party in breach of this Development
Agreement. (The foregoing references in the previous two sentences
are collectively referred to as a "Cause of Delay"). An extension
of time in writing for any such Cause of Delay shall be granted for
the period of the delay which results from such Cause of Delay or
longer as mutually agreed upon, which period shall commence to run
from the time of commencement of such Cause of Delay.
19. Notices.
Any notice or instrument required to be given or
delivered to either party to the Development Agreement may be given
or delivered by depositing the same in the United States mail.,
certified mail, postage prepaid, addressed to:
City: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
Attention: city Manager
Developer: Orient Corporation of America, Inc.
c/o Shimizu America Corporation
1055 West 7th Street, Suite 1800
Los Angeles, California 90017
Attention: Michael A. Cutri
With copy to: Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071
Attention: Russell L. Johnson
Notice of a change of address' shall be delivered in the
same manner as any other notice provided herein, and shall be
effective three days after mailing by the above -described proce-
dure.
20. Default and Remedies.
(a) Notwithstanding any provision of this Development
Agreement to the contrary, Developer shall not be deemed to be in
default under this Development Agreement, and the City may not
terminate Developer's rights under this Development Agreement
unless the city Council of the City finds and determines, on the
basis of substantial evidence, that Developer has not complied in
good faith with one or more of the material terms or conditions of
this Development Agreement and the City shall have first delivered
a written notice of any alleged default to Developer, which notice
shall set forth with specificity the nature of such alleged default
and the manner in which said default may be satisfactorily cured.
24
(b) The City shall be deemed to be in default under this
Agreement, upon the occurrence of one or more of the following
events:
(i) The imposition by the city upon Developer of
any ordinance, rule, regulation, policy or moratorium in
conflict with Existing Development Regulations or the terms of
this Development Agreement. The City shall not be deemed to be
in default by reason of subsequent change of laws, rules,
regulations, or policies of another local agency or governmen-
tal entity not created or controlled by City which prevents or
precludes compliance by City or Developer with this Develop-
ment Agreement; the City agrees not to initiate or promote any
such changes without Developer's express written consent.
(ii) The failure by the City to perform any covenant
or obligation required by this Development Agreement in the
time and manner set forth herein, including, without limita-
tion, completing the public improvements required to be
constructed by the City as set forth above in Section 11(a).
(c.) Subject to extensions of time by mutual consent in
writing or as set forth in Section 18 above, if a default as
defined in subsection (a) or (b) .above, is not cured by the
defaulting party within ninety'(90) days of service of a notice of
default, or with respect to defaults which cannot be cured within
such period, the defaulting party. fails to commence to cure the
default within thirty (30) days after service of the notice of
default, or thereafter fails to diligently pursue the cure of such
default until completion, the non -defaulting party may terminate
the defaulting party's rights under this Development Agreement. In
the event of a default by either party which is not cured within
the time prescribed hereinabove, the non -defaulting party may
undertake one or more of the following remedies:
(i) Terminate this Development Agreement by written
notice stating the grounds for such action; or
(ii) Institute an action for specific performance of
this Development Agreement, it being expressly agreed that, in
the event of a breach of this Development Agreement, irrepara-
ble harm is likely to occur to the nonbreaching party and
damages are not an available remedy.
(d) In no event shall either party be entitled to
damages against the other party based on the other party's default
under this Agreement.
21. Estoppel Certificate.
Either, party may, at any time, and from time to time,
deliver written notice to the other party requesting such party to
25
certify in writing that, to the knowledge of the certifying party,
(i) this Development Agreement is in full force and effect and a
binding obligation of the parties, (ii) this Development Agreement
has not been amended or modified, and if so amended, identifying
the amendments, and (iii) the requesting party is not in default in
the performance of its obligations under this Development Agree-
ment, or if in default, to describe therein the nature and amount
of any such defaults. The party receiving a request hereunder shall
execute and return such certificate w"thin ten days following the
receipt thereof. The City acknowledges that a certificate hereunder
may be relied upon by transferees and mortgagees of Developer.
22. Recordation of Agreement.
This Development Agreement 'and any amendment and
cancellation hereof shall be recorded in the Official Records of
the County of Orange by the Clerk of the City within the period
required by Section 54868.5 of the Government Code.
23. Severability.
If any term, provision, condition, or covenant of this
Development Agreement, or the application thereof to any party or
circumstances, shall to any extent be held invalid or unenforce-
able, the remainder of the instrument, or -the application of such
term, provision, condition or covenant to persons or circumstances
other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby and each term and
provision of this Development Agreement shall be valid and
enforceable to the fullest extent permitted by law.
24. Notice of Default to Mortgage, Deed of Trust or other Security
Interest Holders Right to Cure.
Whenever the City shall deliver any notice or demand to
the Developer with respect to any breach or default. by the
Developer, the City shall at the same time deliver to each holder
of record of any mortgage, deed of trust or other security interest
and the lessor under a lease -back or grantee under any other
conveyance affecting the Property (individually each of the
foregoing are referred to as a "Financer" )' a copy of such notice or
demand, providing that the Financer has given prior written notice
of its name and address to the City. Each Financer shall (insofar
as the rights, of the City are concerned) have the right at its
option within ninety (90) days after the receipt of the notice, to
cure or remedy or commence to cure or remedy any such default and
to add the cost thereof to the security interest debt and the lien
of its security interest or to the obligations of. the lessee under
any lease -back or of the grantor under any other conveyance for
financing. If such default cannot be cured within such sixty (60)
day period, the Financer shall have such additional period as may
be reasonably required within which to cure same, provided that the
26
Financer shall have delivered written notice to the City of its
intention to cure and shall have commenced to cure such default
within sixty (60) days, and shall thereafter diligently prosecute
such cure to completion.
The City shall not terminate this Development Agreement
by reason of the Developer's default without first serving, the
Financer with notice of default and allowing the Financer that
period to cure same as -specified in the first paragraph above, and
such further period to foreclose or otherwise acquire the Property
so long as the Financer notifies the City that it will commence
foreclosure or other proceedings to acquire the Property, and
thereafter diligently prosecutes same to completion. If a default
by the Developer shall be cured by the Financer, the Financer shall
not be obligated to continue any.foreclosure, possession or tither
proceedings which it may have instituted. Should the Financer or
any party claiming through the Financer succeed to the interest of
the Developer in the Property,. or any portion thereof, the City
shall recognize such party as the Developer and shall not disturb
its use and enjoyment of the Property pursuant to this Development
Agreement, provided that such, party cures any default by Developer
which may be satisfied by the payment of money, and performs all of
the obligations of Developer set forth in this Development
Agreement which accrue thereafter.
Breach of any of the covenants or restrictions contained
in this Development Agreement shall not defeat or" render invalid
the lien of any mortgage or deed of trust made in good faith and
for value as to the Property or any part thereof or interest
therein, whether or not said mortgage or deed of trust is subordi-
nated to this Development Agreement; but unless otherwise herein
provided, the terms, conditions, covenants, restrictions and
reservations of this Development Agreement shall be binding and
effective against the holder of any such mortgage or deed of trust
and any owner of the Property, or any part thereof, whose title
thereto is acquired by foreclosure, trustee's sale, or otherwise.
25. Cooperation in the Event of Legal Challenge.
In the event of any legal action instituted by any third
party challenging the validity or enforceability of any provision
of this Development Agreement, the Plan, or any of the other
Approvals for the Development, as the same may be amended from time
to time, or the adequacy of the EIR, the parties. hereby agree to
cooperate in defending said action as set forth in this Section 25.
The city shall have the right, but not the obligation, to
defend any such action; provided, that without the Developer's (and
its successors' and assigns') prior written consent,. which consent
shall not be unreasonably withheld, city shall not enter into any
settlement or compromise of any claim which has the effect,
directly or indirectly, of prohibiting, preventing, delaying, or
27
further conditioning or impairing the Developer's development, use,
or maintenance of any portion of the Property or impairing any of
the Developer's rights hereunder. In addition, City shall provide
reasonable assistance to Developer in defending any such action,
such assistance to include (i) making available, upon reasonable
notice and compensation, City officials and employees who are or
may be witnesses in such action, and. (ii) provision of other
information within the custody or control of City that is relevant
to the subject matter of..the action and capable of disclosure, upon
payment or appropriate arrangements for payment of the costs of
duplicating documents.
Developer and its successors and assigns shall have the
right but not the obligation to defend any such action. In this
regard, Developer's (and its successors' and assigns') right to
defend shall include the right to hire attorneys and experts
necessary to defend, the right to process and settle reasonable
claims, the right to enter into reasonable settlement agreements
and pay amounts as required by the terms of such settlement
agreements, and the right to pay any judgments assessed against
Developer or City. Notwithstanding the foregoing, Developer and
its successors and assigns shall not settle or compromise any claim
or action filed against City without City's prior consent.
Developer shall indemnify and ,hold harmless City from and
against any claims, losses, liabilities, or damages assessed or
awarded against either of them by way of judgment, settlement, or
stipulation arising out of this Development Agreement and./or the
Approvals.
26. Enforceability of Agreement.
The City and Developer and its successors and assigns
agree that unless this Development Agreement is amended or
terminated pursuant to the provisions of this Development Agree-
ment, this Development Agreement shall be enforceable by either
party hereto notwithstanding any change hereafter in any applicable
General Plan, redevelopment plan, specific plan or zoning ordi-
nance.
27. cooperation; Execution of Documents.
Each party shall execute and deliver to the other all
such other further instruments and documents as may be necessary to
carry out this Development Agreement in order to provide and secure
to the other party the full and complete enjoyment of its rights
and privileges hereunder.
28. Justifiable Reliance.
City and Developer and its successors and assigns each
acknowledge that, in investing its time, money, and expertise for
28
the development of the Project, it will be reasonably and justifi-
ably relying upon the other party Is covenants contained in this
Development Agreement.
City further acknowledges that the Development is and
shall be considered a single integrated development project, and
that the Developer's (and its successors' and assigns') development
of each component of the Development is dependent upon its right to
complete and occupy each other component, and that the economic
viability of each component of the Development is and shall be
dependent upon the Developer's (and its successors' and assigns')
right to complete 'and occupy each other component and upon the
city's full performance of its obligations under this Development
Agreement.
29. Entire Agreement; Waivers.
This Development Agreement is executed in two duplicate originals,
each of which is deemed to be an original. This Development
Agreement consists of twenty-five (25) pages and four (4) exhibits
which constitute the entire understanding and agreement of the
parties. This Development Agreement integrates all of the terms
and conditions mentioned herein or incidental hereto, and super-
sedes all negotiations or previous agreements between the parties
with respect to all or any part of the subject matter hereof,
excepting only the other agreements referenced herein.
All waivers of the provisions of this Development
Agreement shall be in writing and signed by the appropriate
authorities of the City and Developer and its successors and
assigns, and all amendments hereto must be in writing and signed by
the appropriate authorities of the City and Developer and its
successors and assigns.
30. Effective Date.
The Effective Date of this Development Agreement shall be
the date that the City Council ordinance adapting this Development
Agreement becomes effective, which date shall be thirty (30) days
after the City Council meeting at which such ordinance is adopted.
31. Rules of Construction; Section Headings.
The singular includes the plural and the masculine gender
includes the feminine. Section headings used in this'Development
Agreement are for convenience of reference only and shall not
constitute a part of this Development Agreement for any other
purpose or affect the construction of this Development Agreement.
32. Time of the Essence.
Time is of the essence regarding each provision of this
29
Development Agreement of which time is an element.
33. Counterparts.
This Development Agreement has been executed in one or
more counterparts each of which has been deemed an original, but
all of which constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Development Agreement as of the day and year first above written.
J
'X5�A. G7
Cl of th Council
APPROVED AS TO FORM:
Edward 'cooper
City Attorney
�14 C•
ity
30
1041641• i �Z,' �,M .1
bYniei H. "ng
Mayor
ORIENT CORPORATION OF AMERICI
INC.
by